their work. 405 The tribunal, therefore, for the determination of compensation, must be disinterested and impartial,100 competent 407 and qualified,408 and a failure to observe statutory requirements or fundamental rules in this respect may invalidate an award.

The purpose of the hearing considered in this section is the determination of the amount of compensation. Private property cannot be taken without the payment of just compensation and its character may be determined by the manner in which it was secured. Many of the questions raised in eminent domain proceedings, courts have held, cannot be urged by the property owner.

The agency employed by the state, the character of a particular use, the necessity for the exercise of the power in the absence of constitutional or statutory provisions, are for the consideration of the legislature or a judicial tribunal, and the property owner, it has been held many times, is not legally interested in these propositions.409 The question, however, of compensation, is one in which he is vitally concerned and upon which he must have his day in court. An award of commissioners is invalid, however legal the proceedings may be in other respects, if made without an opportunity being given the property owner for a presentation of the evidence which he considers necessary to substantiate the amount of his claim for damages.410

A hearing before commissioners for the determination of compensation is necessarily informal in its character. This rule applies to the presentation of evidence,411 the number of witnesses upon the question of values, 12 the place and times of meeting,413 and other details forming this part of an appropriation of property under eminent domain. Witnesses must be sworn and an opportunity given for cross-examination. Action by either party to the proceedings of a character that may have a tendency to unduly influence or prejudice the commissioners is not permissible and if indulged in will justify setting aside an award.414 The

409 Tucker v. Sellers, 130 Ind. 514, 30 N. E. 531. See § 772.

410 Lent v. Tillson, 72 Cal. 404, 14 Pac. 71; City of Santa Ana v. Brunner, 152 Cal. 234, 64 Pac. 287; Perry v. Bozarth, 95 Ill. App. 566; Hobbs v. Tipton County Com'rs, 102 Ind. 575; Stinson v. Dunbarton, 46 N. H. 385.

411 Cobb v. City of Boston, 109 Mass. 438; Goodwin v. Milton, 25 N. H. (5 Fost.) 458. The admission of incompetent evidence will not invalidate the report when it was directly withdrawn and disregarded by the commissioners.

412 Preston v. City of Cedar Rap ids, 95 Iowa, 71, 63 N. W. 577.

413 Vogel v. Bridges, 15 Ky. L. R. 6, 22 S. W. 82; Inhabitants of Sumner v. Oxford County Com'rs, 37 Me.

112;

Weymouth v. York County Com'rs, 86 Me. 391, 29 Atl. 1100; In re Newland Ave., 60 Hun, 581, 15 N. Y. Supp. 53. But see Wilson v. Atkin, 80 Mich. 247, 45 N. W. 94.

414 Harris v. Town of Woodstock, 27 Conn. 567; Beardsley v. Town of Washington, 39 Conn. 265. Every reasonable precaution should be taken to guard against the possi bility of improper influence and to insure a fair trial. Goodwin v. Town of Weathersfield, 43 Conn. 437; Greene v. Town of East Haddam, 51 Conn. 547; Anderson v. Wood, 80 Ill. 15; Peavey v. Wolfborough, 37 N. H. 286; In re Petition for Newport Highway, 48 N. H. 433; In re Road in Drumore Tp. (Pa.) 7 Atl. 193. It is not a valid objection that road viewers were

well recognized informality of the proceedings does not, however, permit a disregard of statutory provisions in respect to any of the subjects noted above. If the law makes special provision for any of them, the usual rule of strict compliance will apply.415

$777. Report or award.

The report or award of commissioners or viewers in eminent domain proceedings should substantially follow all statutory provisions relative to its form and execution. The law is not, as a rule, satisfied by a substantial compliance with its provisions in these respects although in some states a more liberal rule is adopted and a report or award will not be set aside though it does. not literally follow the provisions of the law. The exercise of the power of eminent domain results in an arbitrary taking of private property upon a pecuniary basis and the rule of strict construction in respect to the validity of the various steps in connection with it is the one customarily followed. If the statutes prescribe a form for the report, one not conforming to the requirements is void, but the courts consider the distinction between mere directory or immaterial provisions and those regarded as mandatory and adopt the usual rule applying to the particular circumstances. The necessary official signatures and the requisite number are material essentials of a valid report or award, and if lacking in either of these respects, one will be set aside.417

entertained provided no sinster purpose or effort to influence them is shown. But see Blake v. Norfolk County Com'rs, 114 Mass. 583. The fact that county commissioners during the proceedings for the location of a highway were supplied with lunches by the petitioners will not furnish a ground for quashing the proceedings.

415 Wilson v. Atkin, 80 Mich. 247, 45 N. W. 94.

416 City of Elkhart v. Simonton, 71 Ind. 7.

417 Smith v. Town of New Haven, 59 Conn. 203, 22 Atl. 146. The duties of such a board may be performed legally by a majority. Gal

416

braith v. Littiech, 73 Ill. 209. The presumption of law, however, is in favor of the legality of the action of the viewers as a whole. Bronnenberg v. O'Brien, 139 Ind. 17, 38 N. E. 416; Crommett v. Pearson, 18 Me. 344; Inhabitants of Dartmouth v. Bristol County Com'rs, 153 Mass. 12, 26 N. E. 425; Eatontown Tp. v. Wooley, 48 N. J. Law, 386, 8 Atl. 517; Griscom v. Gilmore, 16 N. J. Law (1 Har.) 105; State v. Parker, 53 N. J. Law, 183, 20 Atl. 1074; In re Road in Borough of Verona (Pa.) 12 Atl. 456; In re New Hanover Road, 18 Pa. 220; In re Paschall St., 81 Pa. 118; In re State Road, 60 Pa. 330.

778. Its recitals.

The technical and mechanical execution of a report or award was considered in the last section. Some necessary recitals of substance will now be suggested. Since a board of viewers or commissioners is an official body of inferior jurisdiction and quasi judicial in its character, it is essential to the validity of a report that it show the existence of all jurisdictional facts and conditions 418 including the giving of a required notice.19 The authority under which they proceeded and the performance of the necessary steps 420 must be stated in the report to give it legality. Jurisdictional conditions vary in different states. One of the customary questions and that most commonly submitted for consideration and determination by a board of viewers or commissioners is the public necessity for the establishment of the highway or the construction of the improvement in question. Where this is a jurisdictional fact, a report must clearly show a consideration of the question by the commissioners and its positive determination.421 A failure to agree with the property owner is a necessary recital under the law in some states.422 The taking of the oath required and the proceedings from time to time should ordinarily be set out in detail in order to show affirmatively a proper qualification of the board 423 and the regularity of the

418 State v. Lippincott, 25 N. J. Law (1 Dutch.) 434; Miller v. Brown, 56 N. Y. 383; French-Glenn Livestock Co. v. Harney County, 38 Or. 315, 58 Pac. 36. The fact that a record does not show all the steps required by statute will not invalidate highway proceedings as it will be presumed that the court did all necessary to the validity of its action. In re O'Hara Tp. Road, 152 Pa. 318, 25 Atl. 602; Missouri K. & T. R. Co. of Texas v. Austin (Tex. Civ. App.) 40 S. W. 35.

419 State v. Inhabitants of Trenton, 47 N. J. Law, 489; Gaines v. Linn County, 21 Or. 430, 28 Pac. 133.

420 Spurgeon v. Bartlett, 56 Mo. App. 349; Jones v. Zink, 65 Mo. App. 409.

421 Pierce v. Town of Southbury, 29 Conn. 490; Butts v. Geary County Com'rs, 7 Kan. App. 302, 53 Pac. 771; Truax v. Sterling, 74 Mich. 160, 41 N. W. 885; Crowley v. Gallatin County Com'rs, 14 Mont. 292; Vedder v. Marion County, 28 Or. 77, 36 Pac. 535; In re Road in Upper St. Claire & Snowden Tps. (Pa.) 11 Atl. 625; Tench v. Abshire, 90 Va. 768, 19 S. E. 779. But see Hum. boldt County v. Dinsmore, 75 Cal. 604, 17 Pac. 710; Campbell v. Fogg, 132 Ind. 1, 31 N. E. 454.

422 Chicago, R. I. & P. R. Co. v. Young, 96 Mo. 39, 8 S. W. 776; Lingo v. Burford, 112 Mo. 149, 20 S. W. 459.

423 Town of Huntington v. Birch, 12 Conn. 142; Warren v. Gibson, 40 Mo. App. 469; In re Cambria St.,

meetings 24 held for the purpose of hearing the evidence submitted upon the subject of damages or other questions left for their decision. The report or award is prima facie evidence of the facts it contains and the burden of proof is upon those objecting to its sufficiency or legality or the regularity of the proceedings.425

§ 779. Description of improvement.

An accurate description of the location of the highway or the proposed improvement is essential to the validity of a report.426 It need not necessarily be understood by all but one technically correct is sufficient,427 and some authorities have held that where